ZACCARDI & ZACCARDI - [2020] FamCA 964

FAMILY COURT OF AUSTRALIA

ZACCARDI & ZACCARDI

[2020] FamCA 964

FAMILY LAW – PARENTING – Where the child is almost five years old – Where the child has not spent time with the husband since early 2019 – Where the wife and child are at serious risk of harm if the husband knows their location – Where the husband has made threats to kill the wife and her mother – Where the husband has perpetrated family violence against the wife – Where the wife’s location is undisclosed – Where the risk of the husband locating the wife is not ameliorated by supervised time – Where the wife is the child’s primary attachment figure – Orders made for the husband to have no time with the child – Orders for no contact with the child – Where the husband is viewed as a serious risk to both the wife and her mother– Injunctive orders made for the personal protection of the wife.

FAMILY LAW – PROPERTY – Where the husband transferred $764,000 to his friend - Where that money cannot be located – Where the Court did not accept the money was lost – Where the money formed part of the property pool – Where the husband made significantly greater initial contributions – Where the contributions of the husband were assessed as 80 per cent and the wife 20 per cent – Adjustment of 10 per cent to the wife for section 75(2) factors.

FAMILY LAW – PRACTICE AND PROCEDURE – Application to restrain the husband’s solicitors from continuing to act – Where new representation would prejudice the administration of justice – Where there is urgency in the completion of the proceedings – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 68B, 68C, 79, 90XT, 102NA
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 reg. 27

Tottle Christiansen v Westgold Resources NL [2003] WASCA 224

APPLICANT:

Mr Zaccardi

RESPONDENT:

Ms Zaccardi

INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

FILE NUMBER:

SYC

5365

2017

DATE DELIVERED:

18 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

9, 10, 11, 12 & 13 September 2019,

19, 20, 21& 22 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

9 SEPTEMBER 2019 – 13 SEPTEMBER 2019:

19 OCTOBER 2020 - 22 OCTOBER 2020:

Mr Williams QC
Ms Goodchild

SOLICITOR FOR THE APPLICANT:

9 SEPTEMBER 2019 – 13 SEPTEMBER 2019:

19 OCTOBER 2020 - 22 OCTOBER 2020:

The Norton Law Group

Ark Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC

SOLICITOR FOR THE RESPONDENT:

Dimocks Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

Orders

IT IS ORDERED
PARENTING

That the wife have sole parental responsibility for the child X born … 2016 (“the child”).
That the child live with the wife.
That the child have no contact with the husband.
That the wife Ms Zaccardi be permitted to remove the child from the Commonwealth of Australia with no restriction and without the consent of the husband.
That subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), the father, Mr Zaccardi born on … 1987, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X, born on … 2016 from the Commonwealth of Australia; AND, subject to Order 4, IT IS REQUESTED that the Australian Federal Police give effect to these Orders by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal or all parties consent to such removal.
That pursuant to section 68B(1)(b), (c), and (d) of the Family Law Act 1975 (Cth) Mr Zaccardi be and is hereby restrained from:
(a)Assaulting, harassing or molesting Ms Zaccardi (“the wife”) in any way;
(b)Forwarding, sending, initiating or sustaining any communication in any form with the wife;
(c)Approaching or being within 50 metres of the wife;
(d)Entering or being within 50 metres of the wife’s home or any place where the wife works.
That pursuant to section 68C of the Family Law Act1975 (Cth), Order 6 is an injunction for the personal protection of the wife.
That pursuant to section 68C of the Family Law Act1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Zaccardi) against whom the injunction is directed has breached the injunction by:
(a) causing, or threatening to cause, bodily harm to the protected person; or
(b) harassing, molesting or stalking that person;
the police officer may arrest Mr Zaccardi without warrant.
That the operation of Order 6 is suspended during any period in which an Apprehended Domestic Violence Order or a Provisional Apprehended Domestic Violence Order made pursuant to the Crimes (Domestic and Personal Violence Act 2007 (NSW) is in force for the protection of the wife from Mr Zaccardi.

PROPERTY

That the husband and the wife do all things required to distribute to the wife the whole of the money in the Controlled Monies Account in their joint names with account number #…58.
That in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth):
(a)The non-member spouse (or such other person to whom a splittable payment is payable mentioned in section 90XE of the Act) is entitled to be paid the specified amount out of the interest of Mr Zaccardi (“the Applicant”) in Super Fund 1 (“the Fund”) of which N Pty Limited is the Trustee;
(b)The entitlement of the Applicant in the Fund is correspondingly reduced by force of this Order; and
(c) The amount specified for the purposes of this Order is $58,300.
That Order 11 has the effect from the operative time and the operative time is the beginning of the fourth business day after service of a sealed copy of this Order on the Trustee.
That the trustee of the Fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate the entitlement awarded to the non-member spouse in Order 11 above, in accordance with the requirements of the Act;
(b)Pay the non-member spouse’s entitlement whenever the Trustee makes a splittable payment from the member’s superannuation interest in the Fund.
That having been accorded procedural fairness in relation to the making of these Orders, Orders 11-14 bind the Trustee of the Fund.
That prior to the parties serving these Orders on the Trustee of the Fund and within seven (7) days of the making of these Orders, the Applicant shall do all things necessary to cause any other superannuation interest that the Applicant may hold in any other superannuation fund to be rolled over into his respective fund with Super Fund 1.
That except as these Orders provide to the contrary the Applicant be restrained by way of injunction from withdrawing, transferring, deducting or rolling-over any interest held in his respective superannuation account with Super Fund 1, until such time as the superannuation splitting provisions provided for within these Orders are effected.
That within one month form the date of these Orders, the husband pay to the wife the sum of $118,557.
That other than as provided in these Orders, each party is solely entitled to any asset in his or her possession.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zaccardi & Zaccardi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5365 of 2017

Mr Zaccardi

Applicant

And

Ms Zaccardi

Respondent

REASONS FOR JUDGMENT

Mr Zaccardi (“the husband”) and Ms Zaccardi (“the wife”) married in 2014 and physically separated in August 2017.
They are the parents of X who was born in 2016.
The proceedings before the Court relate to the parenting of X and to property settlement.
At the present time, pursuant to Orders of this court dated 1 February 2019, the child spends no time with his father. The husband seeks equal shared parental responsibility and for the child to live with him, or, in the alternative, to live with the wife and spend significant and substantial time with him. The wife seeks sole parental responsibility, for the child to live with her and spend no time with his father, and injunctive orders preventing the husband from approaching or contacting her.

HISTORY

At the time when the husband and the wife married, the husband owned an apartment in Suburb J which was rented. The husband had purchased the Suburb J property in 2007 for $234,000 with a deposit of $20,000 and the balance funded by way of mortgage.
The parties did not live together before they married.
The husband worked in a trade and the wife was at university training to be a professional.
In April 2011, the husband was involved in a motor vehicle accident. The wife asserts that, in the aftermath of the accident, the husband exhibited violent and aggressive behaviour towards her. She asserts that, in October 2011 he punched her in the chest and that later in 2011 he squeezed and dug his fingers into her thigh. She asserts that, at their engagement party in January 2013, the husband forcefully grabbed her face. The husband denies those allegations.
After the accident, the husband retrained and worked in a different trade.
In August 2014, the husband received a compensation payment of $442,690.
The husband and the wife married and commenced living together in November 2014. They moved to live in a granny flat at the rear of the home of the wife’s parents, where they lived, rent free, until they separated.
At the time of the marriage, the wife had savings of about $90,000 and superannuation and was working as a professional. The husband had the Suburb J flat, the compensation money, and a small amount of superannuation.
On 23 September 2015, the husband began to transfer money to Mr F, who he had met in school and remained a close friend. Between that date and 3 January 2017, the husband transferred $764,132 to Mr F, without security.
The purpose of those, and subsequent transfers of money, was a central issue in the proceedings and one in relation to which the husband and Mr F both swore affidavits and were cross-examined. The circumstances of the financial transactions between the husband and Mr F will be examined in detail in these reasons.
On 7 January 2016, the husband sold his interest in the Suburb J property to his mother for $520,000.
In January 2016, the husband purchased a property at Suburb K for $1,050,000. The husband deposed that they paid $254,583 towards the purchase price and borrowed the balance, some $800,000, by way of mortgage. Renovations were commenced on the Suburb K property which was intended to become the family home. The wife’s father, brother and cousin assisted with the renovations. The extent of their assistance is in issue.
X was born in 2016.
The wife asserted, and the husband denied, that the husband continued to perpetrate violence upon her after the birth of their child. She asserted the husband’s behaviour became increasingly aggressive and degrading towards the end of 2016. The specific instances, which included urinating on her in the shower, slapping and holding her throat, and sexual assaults were emphatically denied by the husband.
The wife asserts that, in September 2016, and on other occasions, the husband told her that the only way she would leave him would be in a body bag.
In November 2016, the wife purchased a one-third share in a property in M Town, with her father and brother purchasing the other two-thirds. The wife obtained a mortgage from her mother, which covered the entirety of the cost of her one-third share.
On 22 January 2017, X was injured whilst in the care of the husband, when X placed his hand on a hot stove.
On 5 May 2017, there was an incident between the husband and the wife. The wife wanted to go to lunch with a friend and take X. The husband wanted her to lunch with him. The wife was injured in what she described as “head butting” and the husband described as a “face clash”. He refused to let her leave with X.
The wife was injured and attended at G Hospital.
The wife deposed that, on 1 June 2017, in the course of an argument, the husband threatened to “rain down hell on you and your family”. The husband denies that he said this. The wife recorded a part of the conversation. The words can be clearly heard. In cross-examination, after the recording was played in Court, the husband denied that it was his voice on the recording.
Although there is a dispute about the actual date of the end of the marriage, it is agreed that the husband left the home on 3 August 2017.
On 6 August 2017 there was an incident at the home of the paternal grandparents where the husband refused to return X to the wife unless a parenting plan was agreed that included X living with him from Thursday to Sunday each week. X was 19 months old and had never spent a night away from his mother.
The police were called.
The wife deposed that in August 2017, she found a number of items in a wardrobe. The items included a pistol (agreed to be an air pistol), ammunition, a passport (not the husband’s), four items of correspondence addressed to a woman in Suburb J relating to a new credit card, hand written information about the woman including her maiden name, I infer her husband’s name, and various reference numbers and a Notice of Assessment issued by the Australian Taxation Office for a tax file number ending in #…81.
On 18 August 2017, the husband filed his Initiating Application, seeking the urgent reinstatement of time with X.
On 23 August 2017, the wife reported the “face clash” incident to police. The husband was charged with assault occasioning actual bodily harm.
On 24 August 2017, the wife handed the items she found in wardrobe, including the pistol and identification documents, to police.
On 14 September 2017 a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the wife.
On 15 September 2017, the husband completed an intake document for a men’s behaviour program run by P Group.
On 24 September 2017, D Group, a professional supervision service, recorded that, at the end of the contact period, the husband was insistent that he personally return X to his mother, suggesting that the matter was in Court on the following Tuesday and that the supervision arrangements would change. The supervisor would not allow the husband to return X.
On 26 September 2017, orders were made by consent which provided for the husband to spend time with X supervised by D Group. The reports of D Group were in evidence.
On 1 October 2017, D Group recorded that the husband wanted to change the hand over arrangements so that he was in closer proximity to the wife at changeover.
Mr F deposed that, in October 2017, he was told by the husband that a gang member was keeping an eye on the wife and her family.
On 19 November 2017, D Group recorded that the husband insisted on taking X to the toilet in the shopping centre where the wife was waiting for him, rather than the toilet in the park where they were playing. The supervisor recorded that the wife was standing nearby when they arrived and that she was upset.
On 3 December 2017, D Group recorded that the husband questioned X about what his mother was doing and that he wanted to accompany the supervisor when he returned X to his mother.
On 24 December 2017, D Group recorded that the husband gave X a remote controlled toy but took it with him when the visit ended.
On 23 January 2018, after defended proceedings, the husband was convicted of assaulting the wife in the Local Court. He appealed the conviction.
On 6 March 2018, after a defended hearing, the husband was sentenced in relation to the assault and placed on a bond to be of good behaviour for 12 months.
On 1 April 2018 the husband approached the wife at a contact changeover, contrary to the terms of the ADVO. He was charged with breaching the ADVO on 3 April 2019 and convicted after a defended hearing. In cross-examination both he and his mother insisted that the breach was “technical”.
In May 2018 the husband, for the first time, commenced steps to recover the funds from Mr F.
On 8 May 2018 there was a meeting between Mr F, the husband and the husband’s solicitor in relation to the funds given by the husband to Mr F. The substance of that meeting will be examined later in these reasons.
On 3 June 2018, D Group recorded that the husband was waiting on the landing outside the shopping centre and not in the park which was his agreed meeting place. The husband told the supervisor that he always waited there.
On 5 October 2018 the District Court upheld the conviction for assault on appeal and the husband was placed under a “Community Order” for one year.
In December 2018 the husband and his current wife, Ms O commenced to live together.
On 7 December 2018 the husband was placed on a bond for 12 months in relation to the breach of the ADVO.
Mr F deposed that in late December 2018 the husband threatened the wife and the maternal grandmother.
On 28 December 2018 there was an incident to which the police were called at Mr F’s workplace. Mr F told the wife that the husband had threatened to kill her. The wife reported the matter to the police and she was moved to temporary accommodation. The police recovered 44 rounds of ammunition from the workplace, together with other items. This incident will be examined in detail later in these reasons.
As a result of the reported threats, the wife and her mother were placed in secure accommodation by the police.
On 29 December 2018, a provisional Apprehended Personal Violence Order (“APVO”) was made against the husband for the protection of Mr F.
On 30 December 2018, the husband was charged with “stalk/intimidate/intend fear of physical harm” in relation to Mr F, and possession of ammunition for a firearm without holding a licence or permit for the firearm. Provisional ADVO’s were issued for the protection of the wife and the maternal grandmother.
On 25 January 2019, the wife’s application to suspend the husband’s contact was heard. Judgment was delivered on 1 February 2019 and contact was suspended.
On 28 January 2019 a final ADVO was made for the protection of the wife and the child for a period of 12 months.
The wife moved from the secure accommodation to an unknown location.
On 3 May 2019, the husband obtained judgment against Mr F in the Supreme Court of NSW for the outstanding amount.
On 20 May 2019, the husband sold the Suburb K property for $1,000,000. The net proceeds of sale of $90,171 were placed in a controlled monies account.
In May 2019, the husband remarried. He and his wife have a daughter who was born later in 2019.
On 18 July 2019, the charges against the husband were dropped by the police and the husband consented to an APVO for the protection of Mr F and an ADVO for the protection of the maternal grandmother, each for a period of two years.
On 29 October 2019, the ADVO against the husband for the protection of the wife was extended for a further period of two years.

THE HEARING

The matter was listed for hearing for five days commencing on 9 September 2019. As it transpired, that time was inadequate and a further seven days were allocated commencing in May 2020.
At the conclusion of the fifth day, senior counsel for the husband made an application to reinstate contact between the husband and X, albeit supervised. The application was opposed by the wife and the Independent Children’s Lawyer (“ICL”).
That application was dismissed by orders and reasons for judgment delivered 18 September 2019.
At some time after the conclusion of the first week of hearing, the husband withdrew his instructions from his solicitors. Because of the allegations of family violence by the husband against the wife, the provisions of s102NA of the Family Law Act 1975 (Cth) (“the Act”) were enlivened. When the fact that the husband was now unrepresented was brought to the attention of the Court, the hearing in May 2020 was vacated because of the lengthy delay in arranging the husband’s representation.
The matter was eventually listed for six days commencing 19 October 2020.
When the hearing recommenced, it transpired that counsel newly instructed for the husband had only had a short period to prepare, the husband’s previous counsel having withdrawn from the matter unexpectedly. Further, counsel for the husband did not have access to all of the transcripts, had not examined the exhibits and subpoena material, and was hampered by the fact the grant of legal aid allowed for the husband’s solicitor to instruct on only one day of the six days set aside. Counsel had met and conferenced with the husband only on that morning of the resumed hearing.
In those circumstances, counsel for the husband asked for an adjournment to the next day on the basis that she was confident that the hearing could be completed in the allotted time.
The application for the adjournment was formally opposed by senior counsel for the wife but was granted on the basis that procedural fairness required it.
In the hearing, the husband relied on affidavits sworn by him, his father, his mother, his current wife and first solicitor, who later withdrew from proceedings.
The wife relied on affidavits sworn by her, her mother, her father, her brother, her counsellor and Mr F.
The Court was assisted by a report from the single expert psychologist, Ms E, and an ICL.
In relation to the report of the single expert, although an order had been made for the husband to pay the costs of her attendance for cross-examination and reading updated material in the first instance, at the resumption of the hearing, counsel for the husband advised the court that the husband would not pay those costs. Accordingly, Ms E was not available for cross-examination. It was agreed that specified paragraphs of Ms E’s report would be admitted into evidence. Those were the paragraphs that contained her record of what she was told by the parties and witnesses and her observations of the parties, child and witnesses. Those paragraphs that contained her analysis and conclusion were not admitted into evidence.

APPLICATION TO RESTRAIN THE HUSBAND’S SOLICITOR FROM CONTINUING TO ACT

A central issue in the proceedings has been the transaction whereby a large sum of money, some $765,000, passed from the possession of the husband to his friend Mr F. That sum was the most significant asset of the marriage.
The wife’s case has always been that the husband engaged in an attempt to remove the money so that it was not available for distribution in the property proceedings.
On 23 August 2019, Mr F swore an affidavit in which he alleged, inter alia, that the husband and his solicitor were complicit in the dealing. Further, Mr F’s affidavit asserted that the solicitor and the husband had conspired to concoct a transaction so as to defeat the wife’s claim.
At the end of the first day of hearing, I raised with counsel the fact that Mr F had sworn an affidavit in the wife’s case which made serious allegations about the conduct of the husband’s solicitor and that there was no affidavit by the solicitor answering those allegations.
Counsel were put on notice that, at the appropriate time, they would be asked to make submissions about the inferences which could be drawn from the failure of the solicitor to answer the allegations.
At the commencement of the second day of the hearing, Queen’s counsel for the husband told the Court that the solicitor had now sworn an affidavit and a copy of that affidavit was made available to senior counsel for the wife, although not to the husband and not to the Court.
An application was made on behalf of the wife that the solicitors for the husband be restrained from continuing to act in the proceedings. That application was opposed by the husband.
After hearing submissions, I refused to make the order restraining the solicitor and indicated that the reasons for that decision would be included in the substantive reasons. These are they.
The solicitor had drawn an affidavit on behalf of the husband, pursuant to a direction of the Court in May 2018, setting out the husband’s evidence about the transaction between him and Mr F. In his trial affidavit, also prepared by the solicitor, the husband had given another version of the transaction.
Senior counsel for the wife submitted that the enmeshment of the solicitor in the proceedings was such that he should no longer act.
Further, it was submitted that the test to be applied in these circumstances, where it is sought to invoke the Court’s supervisory jurisdiction to restrain a lawyer from acting for a client, was that enunciated in cases such as Tottle Christiansen v Westgold Resources NL [2003] WASCA 224 where the Full Court of the Supreme Court of Western Australia stated:
Whatever might be the ambit of the inherent jurisdiction of the Court, in our opinion it must encompass those cases where the representation of a litigant by solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest – the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation. Alternatively, there must, we think, viewed objectively, be seen to be a real need for an order preventing a solicitor or counsel from acting to imperil the due administration of justice and to protect the integrity of the judicial process. In both respects, the test adopted by the Court will, we think, be an objective one – the matter will be viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander.
Senior counsel for the wife relied on Regulation 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 which provides:
27 Solicitor as material witness in client's case
27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.
On behalf of the husband, Queen’s counsel conceded that the issue in relation to which the solicitor would give evidence was material but submitted that, to require the husband to seek new representation on the second day of the hearing, would prejudice the administration of justice.
The matter had been listed for five days. Both the husband and the wife were represented by senior counsel and an ICL appeared for the child.
The proceedings were commenced in August 2017. In January 2019, on the application of the wife, the husband’s contact with the child was suspended and the child has not seen his father since that time.
As a result of the matters that led to the suspension of the husband’s contact with the child, on the advice of the police, the wife left her previous accommodation which was a granny flat at her parent’s home and moved to another place. She has since lived in a location unknown to the husband and to the Court.
There is therefore some urgency in completing the hearing.
If the husband was required to find alternate representation, the matter would have had to be adjourned. The next available dates for the matter to proceed were in May 2020. It was not foreseen at this time that the husband would seek alternate representation later in the hearing.
There was no possibility that another hearing could be called on to use the hearing days thrown away.
It is a very serious matter to deprive a party to litigation of the representation of their choice and that is particularly so when the solicitor has represented that party since the inception of the proceedings and the hearing has commenced.
In all of those circumstances, I determined that the administration of justice would be prejudiced if the solicitor were restrained from acting for the husband.

ISSUES

From the narrative set out above and in the course of the hearing, the following issues arise for determination:
·    Has the husband been the perpetrator of family violence as the wife alleges or at all?
·    If the husband has perpetrated family violence, is the nature and effect of that violence such that there is an unacceptable risk to the child of continued contact with the husband?
·    Is the sum of $764,000 advanced by the husband to Mr F likely, on the balance of probabilities, to be available to the husband when these proceedings have been completed and therefore an asset in the proceedings?
·    Are the husband, wife and Mr F credible witnesses? The credit of the husband is impugned by the wife. The credit of the wife is impugned by the husband and all parties, including the ICL, impugned the credit of Mr F.
Other than a dispute about the extent and value of the contributions made by the wife’s family to the renovations of the Suburb K property, there was little controversy about the facts of the parties’ financial dealings.

FAMILY VIOLENCE

Despite having been convicted of assaulting the wife, and the conviction having been confirmed on appeal, the husband denies that he has ever been a perpetrator of family violence.
It was clear from the cross-examination of the husband that he regarded family violence as being confined to physical violence.
In cross-examination, the husband conceded that he had perpetrated verbal and emotional violence against the wife.
I do not propose to consider each and every allegation that has been made by the wife, but rather to consider the events which involved third parties and in relation to which there is evidence other than that of the husband and the wife, and such of the evidence of the wife and her mother as was not challenged.
The wife’s mother swore an affidavit in these proceedings. She deposed to conversations with the wife where the wife told her that the husband did not like her seeing her friends; that he did not like her doing things without asking his permission and that he frequently called her mobile phone to check on her whereabouts.
She deposed that in the early stages of their relationship she observed the husband insisted the wife change her clothes before they went out.
She was not challenged in relation to that evidence.
The wife’s mother deposed that she heard the husband tell the wife that, if she left him, it would be in a body bag. In the interview with the single expert, the wife’s mother said that the husband was laughing at the time and she did not take the threat seriously.
The wife deposed that the husband had said this to her on a number of occasions.
The wife’s mother deposed that after the marriage, when the husband and the wife were living in the granny flat attached to her home, the wife on occasions asked to sleep in the home saying that she and the husband had fought. At this time, the wife’s mother occasionally noticed bruises on the wife’s arm. This evidence was not challenged.
The wife’s mother deposed that the wife told her that the husband did not like her going out with X if he (the husband) was not present and that he questioned her about how much time she spent with her mother. That evidence was not challenged.
The wife’s mother deposed that after X was born, the wife often said to her, “please don’t tell [the husband] that I left the home with X to meet with my friends”. That evidence was not challenged.
The wife’s mother deposed that she often saw the husband going through the wife’s handbag and wallet. That evidence was not challenged.
The wife’s mother deposed that, after the husband and the wife separated, she overheard a conversation between them on the baby monitor where the husband said to the wife “I will not allow divorce. The only way you’re going to leave me, is in a body bag”. That evidence was not challenged.
The wife’s mother deposed that after the incident when the wife was assaulted on 5 May 2017 by the husband, she heard her husband ask the husband what had happened and he replied, “[She] is my wife, she’s none of your business, or yours (pointing to my husband and then myself). If we ever have a conversation like this again, we’re leaving”. This evidence was not challenged.
The wife’s mother deposed that, after the assault, she would wait until the husband went to work then let herself into the granny flat to check on the wife and X. She deposed, “I was fearful that I would one day walk in to find my daughter dead”. That evidence was not challenged.
On 12 March 2017, the wife sent a text message to the husband’s father saying:
…I am absolutely struggling with [the husband]. I have no idea what to do. He is under so much stress because people are constantly asking favours of him and because of all the negativity and drama that goes on with [his brothers, who had both been in jail] on top of him trying to work on the house, which means the house doesn’t get done and drags on instead.
He has not come home before midnight every night this week.
It has made him so negative and bitter that we are constantly tense and have no time to work things out. I have tried to talk to him, but you know [him]. “talking is weak” and he can’t see anyone else’s opinions or suggestions.
I can’t have him here if he is just so irrational and unwilling to communicate…
On 5 May 2017, the husband assaulted the wife. It is agreed that, at the time, the husband had injured his arm and had that arm in a cast. The wife had planned to go out to lunch with a friend to a surprise destination. She wanted to take X with her. The husband was upset because he wanted the wife to lunch with him. An argument ensued with X in the middle.
In the proceedings in the Local Court, both the wife and the husband gave evidence and were cross-examined. The medical records were tendered.
In her judgment, the Presiding Magistrate found the following:
[The wife] said that about 11am on 5 May 2017 she was standing in her kitchen … with her son and her husband was there. She was writing in a journal and her husband came home. She said her husband said: “So where do you say you were going today?”. She said she answered “I don’t know, it’s a surprise.” She said that she was going to go out with her son and her best friend. She said [the husband] said: “You are full of shit and how could you not know?” She said the son was sleeping in a room that was just off the kitchen. She said she told [the husband] “I will tell you where I’m going when I get there, it’s a surprise”. She said [the husband] said: “That’s not acceptable and if you don’t tell me you can’t go”. She said she then said “It’s not fair, it’s for me, I’ll tell you when I get there”. She said her husband continued to argue saying: “Tell me the location, you can go but my son can’t go”. She said he was aggressive, he was not yelling but through his body language he was standing over her. She said she was standing with her back to the kitchen bench and his tone was deep. She said he was very close to her, some 30 to 40 centimetres and he is 20 to 30 centimetres taller than her. She said she was looking up at him and felt threatened. She said shortly afterwards her son woke up, she went to get him and picked him up. She said she started to change him to go out and put him on her hip. She said she said to her husband: “I need to go” and tried to say goodbye. She said her husband then grabbed the son and said: “You’re not going anywhere unless you tell me where you’re going”. She said at this stage her husband had a cast on his arm. He used one arm to loop around the back of the child and pulled him off her hip and onto his. She said she said to him “ … come on I need to go” and walked around to the front. She said with his left arm, which had the cast on it, he swatted her hands away and turned his back on her. She said he used his elbow and forearm to knock her outstretched arms. She said she walked around to his front and said, “Come on …” She said she put her hands out again and he knocked them again. She said he walked out the door. She said he would not talk to her and walked to the backyard. She was saying to him: “Please give me the child” and again he knocked her arms. She said not long after that she yelled: “I need to go” because she got fed up. She said she was standing in front of the garage door. He was standing with her son in his arm and he head butted her in the face, nose and mouth area. She said he ducked down and lowered his head to charge like that of an animal. She said she was hit on the nose and mouth area. Immediately her head hit the door behind. She slid and fell and was lying on the floor looking up at the sky. She said she saw spots and could not hear anything. She reached her hand up and found blood coming from her nose and mouth. She said he said to her: “What are you doing on the floor get up”. She said he had walked back over to her. Her son was still on his hip and crying. She said to him: “I can’t believe you hit me”. He said “I don’t know what you’re talking about, I never touched you”.
The Magistrate concluded, referring to the medical records produced by G Hospital:
… I am satisfied that the cuts to the lip are evidence of actually bodily harm… I am satisfied on the evidence before this Court that the incident occurred exactly as [the wife] said that it did. That [the husband] was angry because she had chosen to go out to lunch with a friend. That he became frustrated, that he took the child from her arms. That she continually asked and asked and asked for the return of the child. That she went in front of him after being swatted away by him in the process of trying to take the child and that he pulled his head down and head butted her to her mouth and nose area causing the injuries that are apparent before this Court.
The discharge summary of G Hospital dated 5 May 2017 was tendered in these proceedings. Under the heading “Diagnosis” the document states “physical injuries from a domestic assault”. Under the heading “Summary of Progress” the document states:
27 year old women presented to [the emergency department] with physical injuries sustained after an alleged assault by her husband.
…
States her husband allegedly head-butted her in the middle of a domestic dispute
used his head to hit her face, with the impact mainly on her mouth.
Hit the back of her head in the process so she was standing in front of a door
Fell to the floor as well.
…
There have been episodes of domestic disputes in the past involving shoving or pushing.
The discharge summary noted that the wife had limited movement in her mouth and could barely accommodate two fingers in her mouth. She had a “contusion hematoma” on her upper lip and pain in her front teeth. The treater was unable to ascertain if her teeth were loose because the area was too painful.

The wife deposed that, after the assault, the husband drove off in the car without X secured in his car seat. He went to his father who is a health professional. She sent a text to the husband’s father saying:
Hey… [The husband] has driven the baby there in a cast and without a car seat.
So that you can talk properly with [the husband], let mr [sic] know when you’ve finished with patients and I will take the baby home for a nap. I am outside with my car when you’re ready.
The husband appealed the conviction. On appeal, the conviction was confirmed.
The wife deposed that after the assault she formed the view that the marriage was over and told the husband so. The husband said to her “I will not allow a divorce. We are going to make this work and be a family”. He refused to leave the granny flat. The wife deposed that, after the assault, she and X slept in a room with a locked door and with the baby monitor turned on, the receiver in the room where her mother slept. That evidence was not challenged.
After a time, the mother and X moved into the home of the wife’s mother and the husband remained alone in the granny flat.
The wife was referred to Q Service by the Department of Family & Community Services (as it then was) in May 2017. She remains a client of Q Service. Ms T, her counsellor at Q Service gave evidence in the proceedings and was cross-examined.
In her affidavit, Ms T deposed:
Q Service is a non-government organisation that was established in 1978 and provides a specialist child protection service, working with families and children up to 12 years of age. Families are mostly referred to Q Service by the Department of Family & Community Services, in circumstances where the children are deemed to be a significant risk.
In cross-examination by the ICL, Ms T said:
… our service is a specialist child protection service and we’re an NGO. And it’s hard to describe, because no one else does what we do, so we only get high risk cases. We get the high risk cases, because there are plenty of services to deal with any other family where risk is sort of at a lower bar.
On 1 June 2017 there was a conversation between the husband and the wife which was recorded. The husband denies that he participated in the conversation but, having heard the recording, I am satisfied that it is the husband’s voice. The following conversation occurred:
Husband:I don’t care who you call, I will rain hell down on you and your family. I will bring this house down.
Wife:            On my family? What’s it got to do with my family?
Husband:I will rain hell down on this entire household if you think …
Wife:Oh Mr Zaccardi…
Husband: you’re going to take my son off me.
Wife:            It’s not about taking him off you.
Husband:      Oh my God you have another thing coming.
Wife:            It’s not about taking him off you but it’s not healthy.
Husband:I promise you this. I will bring this fucking roof down on your head. You have no idea what will happen.
The wife deposed that the husband said to her on about five occasions before 5 August 2017, “If you want to leave me, then you will have to lose X as well.” That evidence was not challenged. I do not interpret this remark as a threat to X but rather as a threat to remove X from his mother’s care.
The wife deposed that, on 20 July 2017 the police attended at the home. The wife was not at home. The wife’s mother and the husband were both there. The wife spoke to the police officers on the phone and they told her that they were conducting a welfare check because the Family Relationship Centre had made a mandatory report of violence. The police officer told the wife, “I just had a quick chat with [the husband] and he said there has been no violence issues and that you are very much still married”. That evidence was not challenged.
On 5 August 2017 the husband left the granny flat and went to his parents’ home.
On 6 August 2017 there was an ugly incident involving X.
The husband’s version of that event is that he proposed to the wife that he would have X for a full day and she would not agree, insisting that he be returned at 9.30 am. When he did not return X, the wife came to his parents’ residence at 11 am and he handed X over to her. He deposed that the wife told him that he would not see X again. I do not accept the husband’s version of that event.
The wife’s version of this event was not challenged. The wife deposed that there was an agreement that the husband would spend time with X from 7.30 am until 9.30 am. There was a text exchange, commencing at 7.12 am, as follows:
Wife:He has woken a little earlier today, do you want me to pick him up at 930 or will you drop him off then?
(I infer that the husband then collected X)
Wife:            ?
Wife:            Have you decided?
Husband:      Yes it’s all good I’ll drop him off like we spoke.
Wife:            At 930
Husband:No don’t [sic] be silly, we agreed Sunday is his day with his father, I’ll drop him home tonight. I’ve been reasonable with you and stuck to our agreement all week, even given into you extra, don’t be unreasonable now
(As per the original)
The husband told the wife that he would not return X to her until she had signed a document “regarding parenting” which he was preparing without her input.
At 11.57 am there was a further text exchange:
Husband:      Why don’t we meet for a coffee and discuss.
Wife:            Where will X be?
Husband:      With my mum.
Wife:I’ll agree if he gets taken to a neutral place like a park and my mum can be there also. He has never been alone with your mum
The wife and her mother went to the residence of the husband’s parents. The wife rang the doorbell and the husband came out and locked the door behind him. The wife asked to see X. The husband went to the rear of the property. The wife deposed:
Sometime later, the door opened and I saw X hiccupping and sobbing. X started violently crying with his arms outstretched towards me. X leaned into me. I cuddled and tried to calm him. X held both arms around my neck and cried into my shoulder. I said to [the husband] “why is he so upset. Has something happened?” He said “No. Give X back so I can take him inside.”
The wife changed X’s nappy and asked the husband if one of his family members could go with X and her mother to the park. She deposed to the following exchange:
Husband:      No he’s going inside until you agree
Wife:            Be fair. He was upset.
Husband:Fine but know this, if you don’t sign it, he’s going back with me.
Wife:            …be reasonable, we have to try to compromise.
Husband:      If you don’t sign it, he’s coming back with me.
Wife:             Just go and get some paper and a pen so we can do this.
The wife deposed that by this time X was in the care of her mother and the husband’s mother, playing on the nature strip two houses away. The wife drew a grid of seven days and asked the husband what he wanted. The husband nominated “Thursday to Sunday each week” and the wife said that was too much because X was very little (he was then 18 months old and had never spent a night away from his mother.) She made an alternate proposal. The following conversation ensued:
Husband:      that’s what I want
Wife:It’s too long, he is not used to seeing you without me being there. We need to build up to this
Husband:      If I take it to court, that’s what I’ll get.
Wife:            Maybe.
Husband:      Not maybe, he’s my child. I have a right to 50%.
Wife:He’s not going to cope, look at what happened today. I’ve told you about what happens after your visits. The biting, the pinching, the clinginess, the waking saying “mamma gone”.
Husband:If you don’t sign today, he’s coming back with me and you’ll see us in court.
Wife:That’s not fair. You can’t withhold him till then. That could be years away.
Husband:Well you started this. I told you, if you leave me, you’ll lose him.
Wife:I feel threatened. You can’t do that. I’m going to call the police.
Husband:Don’t do that.
The wife called 000 and asked for police help. The husband tried to take her phone. She ran towards her mother and X. The husband chased her and tried to grab X. The wife took X from her mother and ran across the road, the husband following and trying to take X from her. A passer-by intervened and called 000.
The wife ran onto the verandah of a house and rang the doorbell. The husband followed her, trying to take X from her. A crowd of people had gathered. The husband pushed the wife against a car. A woman intervened and told the husband to stop. The occupant of a nearby house took the wife into her home and she waited there for the police.
The wife’s mother, in her affidavit, corroborated the wife’s version of this event. Her version was not challenged.
The wife asked police to apply for an Apprehended Domestic Violence order (“ADVO”) but was told that they had spoken to the husband who “informed us that this was a simple custody dispute and he denied any history of assault or violence”.
Both the wife and her mother gave statements to the police.
Sometime later, the wife found a number of items in the husband’s wardrobe. She deposed to finding:
An air soft pistol with pellets and a silencer, an Australian passport in somebody else’s name, financial documents in somebody else’s name, credit cards in the name of three other people, ATO documents in five other people’s names and a police baton.
Photographs of some of the items were tendered. The wife handed the items in to the police.
The husband denied that the items were his but gave no explanation for them being in his wardrobe. I accept that they were his.
On 28 August 2017, orders were made for X to spend time with the husband supervised by D Group.
On 22 September 2017, D Group emailed the wife in the following terms:
Your request not to meet the other party has been in the notes since your file was set up. Unfortunately, our supervisors can only advise the other party against following them to a meeting point. They have no power to prevent the other party doing as they please.
It is the responsibility of the named parties to not break their AVO restrictions. If he continues to follow to the meeting place I suggest that you report it to the police.
The email noted the measures that had been put in place to ensure that supervisors were aware of the ADVO and concluded “I am hoping that this will discourage the other party and set some boundaries”.
On 24 September 2017, the supervisor noted that the husband wanted to hand X directly back to the mother and was told by the supervisor that this would not happen. The supervisor noted:
[The husband] initially said that he wanted to continue to carry X to the point of meeting [the wife]. [The husband] also stated that they would be returning to Court on the following Tuesday and he gave the impression that certain arrangements were likely to change to be more favourable to him…
The supervisor noted that the husband reiterated his desire to hand X to the wife. He noted:
[The husband] did not come across as aggressive during this time, though he was quite insistent on what he wanted to do…
The supervisor also noted that the husband was in the wife’s line of sight during the hand-over of X to his mother and that the supervisor stood in front of the wife to block his view.
A map of the agreed hand over points was tendered. The husband’s designated spot is a few blocks away from the wife’s spot and not within the line of sight. The wife’s designated meeting point is in Suburb J Shopping Centre, the husband’s in Location S.
On 26 September 2017, the supervised contact was extended, by consent, so that the husband saw X every Sunday between 11.30 am and 2.30 pm.
On 1 October 2017, the supervisor noted that the husband walked with him and X as he returned X to the wife and the supervisor had to tell the husband to leave. He noted:
He stated to me that he would speak to D Group Office to attempt to modify the arrangement of the point of handover, wanting it to be closer proximity to [the wife].
On 19 November 2017 the supervisor noted that the husband took X to the toilet in the shopping centre where the wife was waiting. The supervisor saw the wife nearby and noted that the wife appeared to be upset. After the husband left, the supervisor told the wife that the husband said the toilet in the park where the husband and X were playing was out of order. The supervisor noted:
[The wife] said he was manipulating the situation and she had visited the toilets close to the park and had taken a video to prove they were fine to use.
The husband was convicted of assault occasioning actual bodily harm on the wife on 23 January 2018. On the same day, an ADVO was made for the protection of the wife for a period of twelve months.
On 7 January 2018 the husband met the supervisor at the entrance to the Suburb J Shopping Centre.
On 28 January 2018, the supervisor noted: “As we were walking through Suburb J Shopping Centre towards the park, [the husband] greeted us outside a café”.
On 18 February 2018, the supervisor noted that when he left the Suburb J Shopping Centre with X, the husband “was already present and waiting just outside the entrance”. At the end of the time, the husband walked with the supervisor and X to the entrance to the shopping centre.
On 11 March 2018, the husband met the supervisor inside the Suburb J Shopping Centre and, at the end of the time, carried X back to the shopping centre.
On 18 March 2018, the supervisor noted that the husband met him at the Suburb J Shopping Centre when he walked out with X.
On 1 April 2018, the wife took X to the usual meeting place and waited for the supervisor. The husband appeared and spoke to the wife, asking her to agree to his spending time with X without the supervisor. The husband had not arranged for the supervisor to attend. The wife proposed that her brother could supervise but the husband insisted that the wife had to accompany X. The wife left with X and contacted the police. The husband was charged with breaching the ADVO. The husband was convicted of the breach on 7 December 2018 and placed on a bond for nine months.
On 15 April 2018 the supervisor noted that the husband met him “outside the front of Suburb J Shopping Centre” and that he walked with him and X to the shopping centre at the end of the time.
On 20 May 2018, the husband met the supervisor at the entrance to the Suburb J Shopping Centre and, at the end of the time, walked back to the shopping centre with the supervisor.
On 3 June 2018, the supervisor noted:
…[the husband] was waiting opposite Woolworths, on the landing outside Suburb J Shopping Centre, looking over towards Woolworths. He was informed he was supposed to be waiting in Location S as the meeting point; however, he responded “I always wait here”. He was again advised that he is supposed to be in the park.
The supervisor also noted that the husband, despite being asked to speak to X in English, spoke to him in his native language. At the end of the visit, the husband carried X into the Suburb J Shopping Centre.
Ms T saw the D Group reports and also had email communication with D Group. In her report, she referred to the husband’s behaviour at supervised contact in the following terms:
We believe that [the husband] is attempting to manoeuvre himself to be close to [the wife.] Though the contacts appear to be physically safe enough they appear to be allowing ongoing tactics of control to play out.
In cross-examination, Ms T described the husband’s behaviour as “grooming” the supervisor and manipulation.
On 5 June 2018, Orders were made, contrary to the submissions made on behalf of the wife, that future contact between the husband and X would be unsupervised.
Ms T observed that after the start of unsupervised contact there was a significant change in X’s behaviour. She deposed:
He appeared to be clingy and was trying to hide behind his mother. I had not observed this behaviour in X before. I also observed marks on his face, where [the wife] told me that X had been picking at his skin.
Ms T deposed:
On 1 November 2018 I was on the phone with [the wife] when I heard X’s voice. He was asking [the wife] for something and it sounded to me that his speech had regressed to baby talk and babble.
In cross-examination, Ms T said that she had previously observed X to be an articulate child.
The events on 27 and 28 December 2019 are hotly contested. Mr F’s version, which is denied by the husband, is contained in his affidavit sworn 23 August 2019 and in his proof of evidence adopted in the witness box. Mr F deposed in his affidavit:
It seemed to me that [the husband] was getting increasingly upset about the Court case, towards the end of 2017. I was in the habit of meeting up with him after work. One day, I think it was in October, I was at his home … when he said to me words to the effect, “I have had someone from my gang keeping an eye on [the wife] and her family. They were stationed outside her house. I know that her brother has a Motor Vehicle 1 and her Dad is having medical treatment”.
Incident on Thursday, 27 December
Then, in about mid-December, [the husband] started to become much more agitated when he talked about the Court case, and he said things to me such as: “I think it’s [the wife’s] mother who is putting up the fight about X. If she was sorted out, [the wife] would have to settle.” He also said words such as, “I could have someone kidnap [the wife’s] mother or just go after her. Maybe go in to the house and kill her”. [The husband’s] comments worried me, but I could not be sure at that stage that [he] actually intended to hurt [the wife] or her mother, or whether he said these things because he was angry.
At about 6:00 pm on Thursday, 27 December, I was having dinner with my mother at her home at Suburb K. [The husband] sent me a text on Wickr, [an encrypted messaging app] simply saying “Come outside”.
I went outside the house, where I saw [the husband] approaching at a fast speed in a car that I used to own. [The husband] flung the passenger door open, even before the car stopped, and called out to me: “Jump in the car, let’s go”. [The husband] told me that he had just returned X to his mother. I could tell from the way that he spoke that [the husband] was angry, and he went on to say words to the effect: “We have to go and sort out this shit. Get in”. He also said words to the effect: “Tonight there will be blood on the streets”.
I understood from [the husband’s] words and his manner, that he wanted to harm [the wife] or her family. Again [the husband] told me to get into the car and again he said words to the effect, “Tonight there is going to be blood on the streets”.
I tried to calm [the husband] down, saying to him things such as “calm down”, and “Maybe you’re tired, why not just go home and relax?”. We talked together in this way for about ten minutes or so.
After [the husband] had told me that he was off work for a while, I said to him words to the effect, “Why not come to my work tomorrow morning? I will pick you up at seven”. [The husband] seemed to have calmed down after about ten minutes and he drove away.
Events of 28 December, 2018
Just before 7.00 am the following morning, I arrived at [the husband’s house]. [The husband] came out of the house wearing suit pants and carrying a black backpack.
As [the husband] got into the car, he put the bag under his feet. As I began driving, I asked [the husband] what was in the bag, and he replied, “I got the piece in there”. I understood “piece” to mean a gun, and was alarmed, saying to [the husband]: “If we get pulled over, we are going to get hammered!”. [The husband] just told me to keep driving.
I was the first to arrive at my work place in Suburb H… It was about 7:45 am. We both got out of my car and I opened the gates, before parking on the driveway. I then opened the roller door and entered the office space, where there is a table and two chairs, where we both sat down. [The husband] then proceeded to open up the main section of his backpack, and I could see a hand gun inside, which [the husband] pulled out slightly. It looked like a 9mm Glock. I asked [the husband] “Is it real? It looks like a toy”, to which [the husband] replied “It is not a toy”, before putting the gun back in the bag.
I tried to appear calm, but was feeling very agitated. I said to [the husband] words to the effect “What other crap did you bring with you today?”, whereupon he opened the backpack further and showed me the blade of what seemed to be a machete or tomahawk. I had seen what looked like a machete in [the husband’s] work van a week or two previously, when [the husband] said to me at the time “I used it to cut a guy’s fingers off”.
[The husband] put the blade back in the bag. He was then on phone for about 45 minutes. During this time, some of my fellow workers arrived. [The husband] asked me if he could borrow one of the vehicles that were parked in the garage, as he said to “carry out work”. He added words to the effect, “[the wife] and her family know what car I drive”. I was concerned that [the husband] was planning to do them harm and so I decided to try and stall him. I said words to the effect “The car keys are at the other dealership, I will have to go and get them”. So I got up from the table and walked to my car, and drove up V Street. I then returned to my work and parked next to where I saw [the husband] still sitting, at the table. He asked me if I had the car keys, but I said words to the affect “No, the person who had the pin code to where the keys are, wasn’t there.”
I was still sitting in the driver’s seat of my car. I saw [the husband] open the backpack again, take out the gun and point it directly at me. With the gun pointing at me, he said “Make sure you come back next time with the keys.”
I felt as though I was about to faint. I began reversing the motor vehicle, at which [the husband] said to me “One second, one second!”. I then saw him go to the back passenger door, open the door and remove a package that was on the floor under the passenger seat. When I asked [the husband] “What is it?” he flung the package at me, and I saw that it contained a quantity of bullets. I said to [the husband] “You’re a fuckwit” and threw the package back at him.
Before leaving, I saw [the husband] walk towards a gap in the wall of the garage area and assumed [he] was going to hide the package there. I drove off.
I drove for about a block before parking. I then called the Police and told them what had happened. I then drove to [my wife’s] work place and collected her, because I was concerned for her safety as well.
At about 11:00 am I called [the wife] and said to her words to the effect, “[the husband] is planning to kill you and your family”. I described to her what had happened the night before. After telling her what had happened at my work, I added, “I am worried for you and your family”. I understand that the Police arrived at [my work place] about 20 minutes after I had called them. A Police Officer later said to me “We’ve recovered the machete and backpack”.

I am not satisfied that the assertions made in the husband’s case about the wife’s credit have been made out.

PARENTING

The husband’s primary position is that the parents have equal shared parental responsibility and that X should live with him and, potentially, spend no time with the wife.
The husband’s alternate position was that X live with the wife and spend time with him commencing with two hours on Tuesday and Thursday and all day Sunday, graduating after one month to overnight on Saturday, after five months, to alternate weekends from Friday afternoon until Sunday, and then moving to Monday morning and, when X starts school, for four consecutive nights each fortnight and half of all school holidays.
The wife seeks sole parental responsibility, that X live with her and that he have no contact with the husband.
It is the allegations of family violence that have been the focus of the parenting proceedings.
In these proceedings, the primary considerations set out in s60CC of the Family Law Act 1975 (Cth) (“the Act”), which are set out below, are brought sharply to the fore.
2. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The nature of the violence to which the mother and the maternal grandmother have been subjected is such that there is a real need to consider whether it is possible to protect X from being exposed to it.
It is to be remembered that when the husband assaulted the wife on 5 May 2017, he was holding X, then 15 months old, in his arms. Similarly, X was in his mother’s arms when the husband chased her and tried to remove X on 6 August 2017.
It is difficult to conceive of psychological harm to a child which would be more serious than his grandmother being killed or injured or his mother threatened with serious injury or death.
I do not consider that even professionally supervised contact between the husband and X would alleviate the risk of violence to the wife.
The husband’s behaviour during the contact which was supervised by D Group in 2017 and 2018, in continually flouting the rules which were designed to prevent any contact between the parents by requiring them to have distant meeting points suggests that, even if the wife were required to take X to a contact centre, he would attempt to make contact with her.
Attendance at a contact centre would require X to be brought to and collected from the centre, giving two opportunities on each occasion for the wife, or her agent, to be followed and her whereabouts located.
The imposition of an ADVO has not, in the past, protected the wife. The husband has been convicted of breaching an ADVO in circumstances where the orders of the Court provided for contact to be supervised and where the intention of supervision was that there be no contact between the parents. Notwithstanding those arrangements, the husband approached the wife and attempted to coerce her into spending time with him and X. This was on occasions where the husband knew that his behaviour was being monitored and recorded.
In the Local Court hearing on 29 October 2019, the wife gave evidence in cross- examination of other breaches of the ADVO. She said:
I was successful in getting an [ADVO] and then he has continued to contact me on my mobile phone… he would wait out the front of my home. I have video surveillance that I’ve shown police of [the husband] sitting out the front of my home… He asked his dad also, which I have proof of, to contact me via text messages on my behalf, the text message says [the husband] asked me to tell you, that is also another breach… The breaches continued right up until December when I was relocated…
In answer to the proposition that the husband had not contacted her, the wife said:
I have changed my number so he can’t contact me, so that’s not a possibility. I’ve also thrown out that mobile phone so that’s not a possibility. [He] has subpoenaed my medical records since I’ve moved. He’s also subpoenaed my phone records since I’ve moved which I had my location so I’ve relocated again. So it’s not for his lack of trying to find me…
In re-examination, the wife said:
Our lives have essentially been ruined since December; I have no family support. I live alone with my son… I can’t explain the fear of the thought that the last time I drop my son off - that could be the last time I see him… But the ammunition recovered, the machete recovered… I can’t imagine what he was intending to do with that ammunition, throw it at me?
Supervision does not prevent X, who will be five years old in early 2021, from saying something that could indicate his and the wife’s location.
Any contact between X and the husband constitutes a risk to the wife.
In those circumstances, I do not propose to consider the matters in s60CC(3), other than to deal with one aspect of the husband’s proposal.
X has met the new wife of the husband [Ms O] but he has not seen her since December 2018 and it is not suggested that he has any relationship with her.
Ms O was cross-examined. She was then expecting her first child in December. She was unable to tell the Court what orders her husband was seeking in relation to X or whether the regime of care he proposed would involve her in caring for X. That evidence was particularly troubling in circumstances where the husband’s application is for X to live with him and Ms O. He gave no evidence that suggested he was proposing to stop working and care for X so it must be inferred that Ms O was to be X’s primary carer and that she had not been consulted about that decision.
The orders will provide for X to have no contact with the husband.

INJUNCTION FOR THE PERSONAL PROTECTION OF THE WIFE

The ADVO remains in force until January 2021. Whether it will be extended further is not known.
The wife seeks an order for her personal protection in the event that there is no ADVO currently in place.
No submissions were made on behalf of the husband in opposition to that application.
I accept that the wife will be in need of personal protection in the event that the ADVO is not extended.

PROPERTY

The husband seeks an order that will result in the wife receiving the whole of the proceeds of sale of the Suburb K property and each of them retaining all other property in his or her possession.
The wife seeks the whole of the proceeds of the Suburb K property, 80 per cent of the husband’s superannuation entitlement and $425,000.
The parties tendered an agreed balance sheet which is reproduced below. I will deal with the disputed items using the numbers on the balance sheet.

Ownership		Description	Wife’s value	Husband’s value
ASSETS
1.	J	Monies held in Controlled Monies Account with FF Bank	$ 90,257	$ 90,170
2.	H	Judgment obtained against Mr F dated … 2019 in the amount of $830,676.42. (See Notes)	$ 764,132	$ 764,132
3.	H	Motor Vehicle 2	$ 8,000	$ 8,000
4.	H	Motor Vehicle 3	$ 1,000	$ 1,000
5.	H	Tools of trade	$ 4,000	$ 2,000
6.	H	Commonwealth Bank Account #…52	$ NK	$ 500
7.	H	NAB Account	$ NK	$ Nil
8.	H	Household Contents	$ 1,000	$ 1000
9.	W	1/3 interest in L Street, M Town	$ 170,000	$ 170,000
10.	W	Commonwealth Bank Account #...09	$ 288	$ 0
11.	W	Household contents	$ Nominal	$

Total

$ 1,038,677

$ 1,036,802

LIABILITIES
12.	H	Commonwealth Bank Credit Card	$ 0	$ 8,000
13.	H	NAB Credit Card	$ 0	$ 35,000
14.	W	Equitable Mortgage (W’s mother)	$ 50,000	$ 50,000
15.	W	Loan from mother (personal loan)	$ 88,000	$ Nil
16.	W	Loan from mother (legal fees). (See notes)	$ 385,559	$ Nil
17.	H	Loan from father (legal fees). (See notes)	$ Nil	$ 333,053

Total

$ 523,559

$ 426,053

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife’s value	Husband’s value
18.	H	Super Fund 1	Accumulation	$ 72,875	$ 72,875
19.	W	Super Fund 2	Accumulation	$ 4,603	$ 20,663

Total

$ 77,478

$ 93,538

Item 1 – the proceeds of sale of Suburb K

There is no explanation for the discrepancy. The wife’s figure was accurate at end September 2020 and I will accept it for the purpose of the balance sheet.

Item 2 – money transferred to Mr F

The husband agrees on the figure but does not agree that the amount should be included in the asset pool. I have dealt with that issue earlier in these reasons.

Item 5 – husband’s tools of trade

There is no agreement and no valuation of the tools. I will accept the husband’s value for the purpose of this determination.

Items 9 and 14 – wife’s interest in M Town and mortgage to her mother

The value of the interest is agreed. There is no dispute that the wife made no contribution to the acquisition of the property or to its upkeep. The whole of the purchase price was provided by the wife’s parents and they have solely paid the outgoings including a substantial sum for renovations. The wife’s one-third share of the cost of the renovations is represented by the mortgage to her mother who actually paid the costs.
It was not contended by the husband that the interest in M Town was available to the wife or that she was likely to gain any benefit from it in the foreseeable future.
In those circumstances, I propose to remove both the interest and the mortgage from the balance sheet and treat the interest as a financial resource.

Items 12 and 13 – husband’s credit card debts

The parties have been separated for more than three years. The husband has remarried and has another child. There is no evidence that the credit card debts relate to the marriage. They will be removed from the balance sheet.

Items 15, 16 and 17 – borrowings for legal fees

These items will be removed from the balance sheet.

Item 19 – wife’s superannuation

There is no explanation for the discrepancy in the values and no evidence of the current value. In her Financial Statement 14 August 2018, the wife deposed to superannuation worth $24,663. She has not worked since that time. It may be that she has withdrawn money from superannuation to supplement her living costs but she has not given that evidence.
The wife’s superannuation will be included at the higher figure for which the husband contends.
I therefore find the assets of the parties to be:
J         Proceeds of Suburb K (controlled monies account)     $90,257
H.       Money held by Mr F  $764,132
H.       Motor Vehicle 2  $8,000
H.       Motor Vehicle 3  $1,000
H.       Tools of trade  $2,000
H.       Household contents  $1,000
W.       Bank  $288
H.       Superannuation  $72,875
W.       Superannuation  $20,663
TOTAL  $960,215
Of these assets, the husband has in his possession or control assets to the value of $849,007 (including his superannuation).

CONTRIBUTION

At the time of the marriage, the wife had savings of some $90,000 and superannuation.
The husband had the proceeds of his common law claim of $442,690 and his interest in the Suburb J unit which he sold to his mother in January 2016 for $520,000.
The husband’s initial contribution of some $962,690 far outweighs the contribution of the wife and exceeds the assets presently available for distribution between them.
They lived together for less than three years. The wife did not engage in paid employment after X was born in 2016 and was his primary carer until separation in August 2017.
The wife’s parents provided rent free accommodation including utilities.
The wife does not assert that she contributed any of her savings to the purchase of the Suburb K property. The husband contributed $245,583 from his own funds towards the purchase.
The wife has repaid $100,000 to her mother, being a portion of the $150,000 lent to her by her mother for the purchase of the M Town property.
The wife’s family made significant physical contributions towards the renovations of the Suburb K property. The wife’s brother estimated that he spent about 20 days working full time on the renovations. The wife’s father, a tradesman, worked full time at the property for about five months. The wife’s parents also paid $13,500 to a carpenter for work on the Suburb K property. The wife’s cousin did the gyprocking. The wife contributed $5,000 from her savings to the renovations.
After separation, the wife performed almost all of the parenting for their child until January 2019 and has performed all of the parenting since that date.
The husband has retained most of their liquid assets.
The wife wanted to move into the Suburb K property after separation but the husband would not agree. The property remained empty until it was sold for $1,000,000. At the time of the sale, the balance outstanding on the mortgage was $887,706.
There is no evidence that the husband made any mortgage payments after the parties separated. The wife had no income. The husband was working full time. The increase in the indebtedness under the mortgage is attributed to the husband.
Overall, taking all of those matters into account, contributions are assessed as 80 per cent to the husband and 20 per cent to the wife.

SECTION 75(2)

The wife has an interest in the M Town property, subject to a liability to her mother to repay the balance of her share of the purchase monies and the renovations. It is not contended that she is likely in the foreseeable future to receive any benefit from the sale of that property.
The husband currently earns $1,511 per week or $78,572 per annum. He has remarried and his current wife has a new baby and, I infer, is not working.
The wife will be able to return to work when X starts school in 2021. There is no evidence of her likely income but it is likely that it will be less than that of the husband. There is no evidence of the availability of work for the wife as a professional or whether she intends to work full time or part time.
The wife will be solely responsible to house and parent X.
The discrepancies in their income and parenting responsibilities into the future require an adjustment in favour of the wife of 10 percent.

CONCLUSION

The wife will receive 30 per cent of the available property or $288,065. She has $20,951(including her superannuation) so she will receive a further $267,114. Of that sum, $58,300 will come from the husband’s superannuation and $90,257 from the controlled monies account holding the proceeds of sale of Suburb K and the balance from a further payment of $118,557 from the husband.

I certify that the preceding three hundred and seventy-five (375) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 November 2020.

Associate:

Date: 18/11/2020